Main Menu

“MUELLER IS GOING TO GET WHAT HE WANTS”: INSIDE THE TRUMP-MUELLER CAT-AND-MOUSE GAME

While Trump’s lawyers are working to limit Trump’s legal risk, experts say it may be impossible for the president to avoid a perjury trap. “That is a problem for the Trump lawyers, not the special counsel,” says one former White House counsel. “One way or the other, the lawyers have to figure out how to prepare the president to give testimony.”

“The most difficult decision a lawyer has to make is whether to allow his client to speak to the prosecutor—or in this case, the special counsel,” Robert Bennett told me, referring to the unfolding chess match between Donald Trump and Robert Mueller. Bennett, the Brooklyn-born Washington superlawyer, would know, having represented President Bill Clinton in the Kenneth Starr investigation. For a fabulist like Trump, however, the danger is tenfold: Mueller has already charged four former members of the Trump campaign with making false or misleading statements to the F.B.I. “I think there are tremendous risks in this case, because the easiest case for the government to prove would be a false statement given to the F.B.I. or the independent counsel,” Bennett added. “That’s a very easy one to prove.”

While the president initially said he is “100 percent” willing to meet with Mueller under oath, his legal team has cautioned that any interview could be a perjury trap. “He’ll be guided by the advice of his personal counsel,” Ty Cobb, the White House lawyer on the Russia inquiry, toldThe New York Times. For months, Trump’s lawyers have been engaged in discussions with Mueller’s team, weighing options that could mitigate the president’s legal risk. Though the format of the potential interview remains an open question, Mueller, wielding the power of subpoena, has the upper hand in shaping the negotiations. “What matters is how much leverage you have on either side,” said Renato Mariotti, a former Chicago prosecutor. “Mueller has most of the leverage . . . in the end, Mueller is going to get most, if not the vast majority, of what he wants.”

The challenge for Trump’s legal team, led by Cobb and John Dowd, is to protect the president from himself under conditions acceptable to Mueller. “It’s a very bad sign for the president that his own lawyers are so worried about whether he’s going to tell the truth that they’re trying to negotiate all of these conditions ahead of time,” Neal Katyal, a former acting solicitor general under President Barack Obama, told me. “Ordinarily, when you’re representing a high-ranking government official, you’re not worried about your client being forthcoming because that goes with the nature of government service. But here, I think the lawyers are wise to worry, just given Donald Trump’s track record of him confabulating in any number of ways.”

Trump’s legal team has considered options including providing written responses to Mueller’s inquiries, or having the president sit for a limited interview that doesn’t delve into specifics, as The Wall Street Journalreported on Sunday. But for Mueller, these are likely nonstarters. “What it appears they are trying to do here is have their cake and eat it too,” Mariotti said. “In other words, to try to have an interview and tightly control the interview.”

Sol Wisenberg, a Washington defense attorney who was deputy independent counsel in the Starr investigation, rejected the notion that Mueller would allow Trump’s legal team to respond to his inquiries in writing. “I would never tolerate written questions . . . I’ll be shocked if [Mueller] tolerates it. Because it’s not civil litigation; you don’t get to decide how you’re gonna be questioned,” he said. “You do it the way you do any criminal investigation: you question people . . . You’re testing their credibility. You just don’t do that.”

Members of the D.C. bar similarly dismissed the idea that Mueller would be comfortable limiting an in-person interview with the president to questions that don’t “test [the president’s] recollections,” as was floated in the Journal. “Mueller is going to have to address concerns that the president’s lawyers raise about scope. But there is also a point beyond which he will be unwilling to accommodate them,” Robert Bauer, who served as White House counsel for Obama, told me. “That is a problem for the Trump lawyers, not the special counsel. One way or the other, the lawyers have to figure out how to prepare the president to give testimony.”

Arguably, the best option for Trump might be an informal interview with Mueller while his lawyers are present. “The lawyers are able to tell Trump not to answer questions. They are able to go out of the room to talk to Trump. They are able to clarify,” said attorney William Jeffress, who worked on the Valerie Plame case. “If they can accomplish that, that alone is something. But it does not solve the problem . . . [of] a perjury trap.”

Left, Trump lawyer Ty Cobb photographed with client former Commerce Department official John Huang testifying before the House Governmental Reform Committee in 1999; Right, Trump layer John Dowd photographed with representing Raj Rajaratnam, the convicted Galleon Group LLC hedge fund manager in 2011.

The great worry among Trump’s friends is that the same habits that served him so well in the business world, and that helped him win the presidency, could be his undoing under oath. And that even all the lawyers in the world won’t be able to prevent Trump from being a danger to himself. “He actually is not a hardened survivor of courtroom battles. He’s sort of a dilettante,” noted journalist Tim O’Brien, the author of TrumpNation: The Art of Being the Donald, and one of the few people to have deposed Trump in court. Shortly after the book was published, in 2005, Trump sued O’Brien for $5 billion for claiming that Trump’s net worth was only $150 million to $250 million. Three years later, the presiding judge threw out the case. “In our deposition, there were moments where he wasn’t truthful,” O’Brien told me. “The problem with him is that he is this rare combination of being egomaniacal and wildly insecure. He can’t regulate his own behavior even under oath, because he loves to portray himself as infallible and the person in charge. Those two things often cause him to misrepresent things in a way that’s damaging to himself.”

O’Brien doubted that Trump could avoid perjuring himself, even under the best circumstances, given his well-documented penchant for false statements and exaggeration. “He has never been subjected to this kind of scrutiny in his entire business and political life. He’s certainly never been subjected to someone who has all of the firepower that Bob Mueller is bringing to bear on this,” he continued. “They couldn’t be more opposites as people. Mueller’s content to stay out of the headlines, and he’s content to quietly, methodically, and diligently build a case. He’s a devotee of the fact pattern. Trump—he’s not patient, he’s not methodical, and he ignores facts.”

The greatest danger for Trump is what Donald Rumsfeldfamously called the “unknown unknowns.” While the Russia story has been defined by leaks—particularly flowing from the various congressional investigations—Mueller’s team has been airtight. “The piece that’s always missing in every conversation about Mueller, and this is consistently the case, is that we assume we know what he wants to ask, and we actually don’t,” Bauer said. “That’s going to drive a significant amount of the discussion about what accommodations are appropriate, what topics are going to be available, and how long it’s going to run. It depends on how much ground the special counsel has to cover legitimately. That’s going to be determined by information the special counsel has that we might have only the dimmest sense of, and some parts of which we don’t know anything about at all.”

The information asymmetry means that Trump’s legal team has to prepare him to field any number of questions about various events over the past several years—a unique challenge for a president who often struggles to tell the same story twice. “I think it’d be very dangerous for him to go in for an interview. In our situation, President Clinton pretty much knew what we knew by the time he went in for his grand-jury questioning,” said Wisenberg, referring to the Starr investigation. “Here, I don’t care how much his lawyers are trying to talk to lawyers in the same camp—and I’m sure they’re doing it—they just don’t know everything that Mueller knows.”

Of course, Trump always has the nuclear option. The strongest hand the president’s team has to play is to refuse to speak with Mueller at all. If Mueller subpoenas the president to testify before a grand jury—as Starr did to Clinton—Trump’s team could fight the order in court. Given the precedent set in United States v. Nixon, however, the president would almost certainly lose. That would leave Trump with the option to invoke the Fifth Amendment and refuse to testify—a legally sound, but potentially explosive, final move. Typically, pleading the Fifth would be a smart move for a client in Trump’s circumstance, Wisenberg said. But Trump is hardly the typical client. “The only real question here is: does he decide ‘I can’t politically handle refusing to talk?’”

With the president’s allies on Fox News already eroding faith in the Department of Justice to run an unbiased investigation, stonewalling Mueller may, in fact, be the smarter move. “In my own view, in President Trump’s case, people have seemed to have made up their minds about him,” Bennett mused. “His supporters would say, ‘Well, why should he? Everybody knows that the special counsel is out to get him.’ Those who are opposed to Mr. Trump will say, ‘See, he’s hiding something.’” Until control of one or both houses of Congress changes hands, the needle in Washington is unmoved.

Some in Trumpworld have questioned why Mueller needs to speak with Trump at all, given the White House’s cooperation with the probe and the dozens of interviews the special prosecutor has already conducted with Trump associates. Mueller “has all of the notes and memos of the thoughts and actions of this president on all subjects he requested in real time without reservation or qualification, including testimony from his most intimate staff and eight lawyers from the White House Counsel’s office. Any question for the president is answered in these materials and testimony,” a member of the Trump legal team told the Journal.

But there are some questions only Trump has the answer to. “If Mueller is going to fulfill his mission, I think it’s absolutely key. I don’t see how he can have conducted a thorough investigation of the matters under his jurisdiction without speaking to Trump. So, obviously, he needs to do it for that purpose. Is he going to learn anything new? Chances of that are probably slim,” Jeffress told me. “But he certainly needs to know from Trump in a setting where he’s not just giving a campaign speech or responding to reporters. He needs to do it in a setting where truth is paramount. He needs to find out what the president’s explanation is.”

Questions surrounding a potential Trump-Mueller showdown exposure fissures within the president’s legal team, too. Privately, Trump’s lawyers have clashed over the extent to which the president should cooperate with Mueller’s investigation, with Cobb arguing in favor of greater transparency—in order to end the investigation faster—and White House counsel Don McGahn concerned with protecting institutional privileges. Some have argued that refusing an interview, for example, could erode the powers of the presidency by forcing the Supreme Court to weigh in on the president’s ability to assert immunity. Others suggest that further damage to the White House firewall is a foregone conclusion. “I don’t put much stock in that because, look, the presidency in the post-Watergate era has been diminished so significantly by Watergate, Iran-Contra, Whitewater, and Clinton. There’s not many more bad precedents that you can have,” one D.C. white-collar defense attorney told me, speaking on condition of anonymity. “Look, we’ve torn down the presidency. I’m not saying it’s a good or bad thing, but, I mean, he can be sued civilly. He can be dragged in front of the grand jury. He could have a Secret Service agent testify against him. He has limited ability to claim privilege. I mean, what more can you do to him?”

All agree, however, that some sort of face-off between the two men, Trump and Mueller, is all but inevitable. “All the issues about how, when—it’s almost a silly discussion . . . every one of those topics are, in my mind, a waste of time,” said Lanny Davis, who served as special counsel to President Clinton. “Why? Because it is up to Bob Mueller. If Bob Mueller issues a subpoena, there is no discussion. [Trump] either shows up and takes the Fifth Amendment, shows up and lies, or shows up and tells the truth. In any case, he has to show up once Bob Mueller issues a subpoena.”